The Definition of the Crime of Aggression – Entry into Force and the Exercise of the Court’s Jurisdiction over this Crime
Czech Yearbook of Public & Private International Law, Vol. 6, 2015
16 Pages Posted: 11 Oct 2015 Last revised: 1 Mar 2016
Date Written: October 10, 2015
This article focuses on the specific process of the entry into force of the Kampala amendments on the crime of aggression and the activation of the International Criminal Court’s jurisdiction, as well as on a (very complex) scope of the Court’s jurisdiction over this crime. Differences between the exercise of the Court’s jurisdiction over the crime of aggression in case of State referrals and proprio motu investigations on the one hand, and, on the other hand, the exercise of jurisdiction in case of the United Nations Security Council referrals are described. The main part of the article is focused on one of the most contentious issues concerning the aggression amendments - the differences between the “positive” and “negative” understanding of the second sentence of Article 121(5) of the Rome Statute and its relationship to Article 15bis adopted at the Review Conference, which determine the circle of States Parties subjected to the Court’s jurisdiction over the crime of aggression. In this connection, the article also touches upon the conformity of the amendments on the crime of aggression with the law of treaties. The article concludes by questioning the coherence of the opt-out system contained in Article 15bis with the general jurisdictional scheme of the Rome Statute and by supporting the “negative” understanding of Article 121(5), second sentence (according to this understanding the Court may exercise its jurisdiction over the crime of aggression only when both the aggressor State Party and the victim State Party accepted the aggression amendments), as a legally well-founded and more persuasive approach.
Keywords: International Criminal Court; crime of aggression; activation of the jurisdiction; article 121, paragraph 5 of the Rome Statute; “positive” and “negative” understanding; article 15bis of the Rome Statute; law of treaties
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